Kerala High Court
Rajiv Gandhi Memorial Educational And ... vs Udinoor Peedikayil Harris on 13 September, 2024
Author: Amit Rawal
Bench: Amit Rawal
RCREV. NO. 177 OF 2024 1 2024:KER:70364
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
RCREV. NO. 177 OF 2024
AGAINST THE JUDGMENT DATED 05.08.2024 IN RCA NO.10 OF 2024
OF THE RENT CONTROL APPELLATE AUTHORITY (DISTRICT COURT)
KASARAGOD ARISING OUT OF THE ORDER DATED 18.05.2024 IN RCP NO.4
OF 2023 OF THE RENT CONTROL (MUNSIFF) COURT, HOSDRUG
REVISION PETITIONER(S)/RESPONDENT/RESPONDENT :
RAJIV GANDHI MEMORIAL EDUCATIONAL AND CHARITABLE
SOCIETY, REPRESENTED BY ITS CHAIRMAN,
ASHRAF ALI BASHEER MOIDEEN
AGED 64 YEARS, S/O. BASHEER AHAMMED, TRIKARIPUR,
KASARAGOD DISTRICT, PIN - 671310
BY ADV V.N.RAMESAN NAMBISAN
RESPONDENT(S)/APPELLANT/APPLICANT :
UDINOOR PEEDIKAYIL HARRIS
AGED 62 YEARS
S/O. DR. S.V. ABDUL KHADER (LATE), R/AT S.V. HOUSE,
PEKKADAM, NORTH TRIKARIPUR VILLAGE, TRIKARIPUR P.O.,
HOSDURG TALUK, KASARAGOD DISTRICT, PIN - 671310
THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON
13.09.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RCREV. NO. 177 OF 2024 2 2024:KER:70364
AMIT RAWAL & EASWARAN S., JJ.
--------------------------------
R.C.R. No.177 of 2024
------------------------------------------
Dated this the 13th day of September, 2024
JUDGMENT
AMIT RAWAL, J.
Present revision petition is directed against the judgment of
the appellate authority dated 5.8.2024 in Rent Control Appeal No.10 of
2024 whereby the order of the Rent Controller dated 18.5.2024,
dismissing the application, I.A. No.3 of 2023 in the pending R.C.P.
No.4 of 2023 preferred under Section 12 of the Kerala Building (Lease
and Rent Control) Act, 1965, has been set aside. Petitioner/tenant has
been ordered to deposit an amount of Rs.7,00,000/- (Rupees seven
Lakhs only) before the Rent Control Court within a period of four (4)
weeks and continue to pay the rent from the month of September
2024 without delay, with a further condition that in case the tenant
fails to deposit the arrears of rent and future rent as per the
aforementioned directions, should vacate the premises within a further
period of six months.
2. Petitioner was inducted as a tenant on the basis of a
RCREV. NO. 177 OF 2024 3 2024:KER:70364
registered lease deed dated 3.10.2019 at a monthly rent of
Rs.50,000/- (Rupees fifty thousand only). The aforementioned rent
agreement was valid for a period of four years. The landlord preferred
an ejectment petition on the ground of arrears of rent and bonafide
need under Sections 11(2) and 11(3) of the Act. During the pendency
of the rent petition, submitted an application for determination of
arrears of rent as provided under Section 12(1) of the Act for admitted
arrears of rent from May 2022. Aforementioned application was
contested by the petitioner/tenant on the ground that improvements
of Rs.40,00,000/- (Rupees forth lakhs only) had been made by him on
the basis of oral consent from the landlord, which were liable to be
adjusted/set off in respect of the future rent and therefore question of
arrears of rent as claimed by the landlord did not arise. The Rent
Controller, on the basis of aforementioned arguments, dismissed the
application of the landlord vide order dated 18.5.2024.
3. Appeal preferred, as noticed above, has been allowed on
the ground that the tenant is not entitled to seek any permanent
exemption from the order of eviction passed under Section 12(3) of
RCREV. NO. 177 OF 2024 4 2024:KER:70364
the Act in view of the protection under Section 11 (11)(ii) of the Act
for, the protection available to the tenant is only on the grounds
mentioned under sub-section (1) to (10) of Section 11 and not
available under section 12(3) of the Act and is entitled to pay the rent
as per the provisions of Section 12 and 12(3) of the Act.
4. Sri. Ramesan V.N., the learned counsel appearing for the
revision petitioner/tenant submitted that no doubt the petitioner
tenant had taken the premise by virtue of a registered lease deed and
the rent was being paid against valid receipts but the landlord did not
agree to execute anything in writing for the purpose of making
additions amounting to Rs.40 Lakhs but orally agreed for set off and
therefore cannot turn around and prefer an eviction petition as well as
interim application, though dismissed by the rent controller, but,
reversed by the appellate authority. In support of the contentions, the
learned counsel relied on the judgments in Pathumma Beevi v.
Lonappan [1985 KLT 705] , Davy v. Indu [1999 (3) KLT 434] and A.
Ammachi v. Pathumuthu Umma & Others [1972 KLT 401] to
contend that the amount standing to the credit of the tenant on
RCREV. NO. 177 OF 2024 5 2024:KER:70364
account of improvements effected by him on the basis of agreement
with the landlord, is liable to be set off.
5. Once the order of eviction has been passed under Section
12(3) of the Act for payment of rent, the rent controller cannot recall
the order of eviction but the tenant can claim the adjustment of the
advance payments.
6. All the judgments cited are based upon different
circumstances and there is no case that any premium was being
made. The judgment in A. Ammachi (Supra) pertains to a
proposition where the landlord had agreed in writing, permitting the
tenant to make improvements. However, in the instant case, there is
no such agreement oral or in writing. Moreover, there is a specific
clause (Clause 5) in the lease deed, handed over to us during the
course of argument specifying that if the tenant fails to make payment
of rent, the landlord is entitled to seek eviction after the period is over.
Not only this, it is also mentioned in the agreement that after the
expiry of the lease period, the tenant was liable to vacate the premises
and hand over the possession. Section 12(1) (2) and (3) empowers
RCREV. NO. 177 OF 2024 6 2024:KER:70364
the landlord to take steps for eviction on non- payment of rent, the
same reads as under:
" 12. Payment or deposit of rent during the pendency of
proceedings for eviction.- (1) No tenant against whom an
application for eviction has been made by a landlord under
section 11, shall be entitled to contest the application
before the Rent Control Court under that section, or to
prefer an appeal under section 18 against any order made
by the Rent Control Court on the application, unless he has
paid or pays to the landlord, or deposits with the Rent
Control Court or the appellate authority, as the case may
be, all arrears of rent admitted by the tenant to be due in
respect of the building up to the date of payment or
deposit, and continues to pay or to deposit any rent which
may subsequently become due in respect of the building,
until the termination of the proceedings before the Rent
Control Court or the appellate authority, as the case may
be.
(2) The deposit under sub-section (1) shall be made within
such time as the Court may fix and in such manner as may
be prescribed and shall be accompanied by the fee
prescribed for the service of notice referred to in subsection
(4):
Provided that the time fixed by the Court for the deposit of
the arrears of rent shall not be less than four weeks from
the date of the order and the time fixed for the deposit of
rent which subsequently accrues due shall not be less than
two weeks from the date on which the rent becomes due.
(3) If any tenant fails to pay or to deposit the rent as
RCREV. NO. 177 OF 2024 7 2024:KER:70364
aforesaid, the Rent Control Court or the appellate
authority, as the case may be, shall, unless the tenant
shows sufficient cause to the contrary, stop all further
proceedings and make an order directing the tenant to put
the landlord in possession of the building.
(4) When any deposit is made under sub-section (1), the
Rent Control Court or the appellate authority, as the case
may be, shall cause notice of the deposit to be served on
the landlord in the prescribed manner, and the amount
deposited may, subject to such conditions as may be
prescribed, be withdrawn by the landlord on application
made by him to the Rent Control Court or the appellate
authority in that behalf. "
The directions issued by the appellate authority, in our
considered view, did not suffer from any illegality or perversity.
RCR stands dismissed.
Sd/-
AMIT RAWAL, JUDGE
Sd/-
EASWARAN S., JUDGE
NS
